Legislature(1995 - 1996)
02/01/1995 01:30 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SJUD - 2/1/95
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:00 p.m. Present were Senators Green, Miller and Taylor.
The committee took up SB 13 as the first item of business.
SENATOR LEMAN, sponsor of SB 13, informed committee members that in
1990 the 16th Legislature passed a similar DNA bill, SB 275,
without objection, which was vetoed by the Governor. SB 13 changes
the current court standard which provides for the use of the Frye
test to a standard that would allow the use of the Daubert test and
reduces the costs associated with using DNA evidence in trials.
Those funds could be used elsewhere in the prosecution of crimes.
This bill updates Alaska's standards with current technology and
enables prosecutors to have more tools available to them, as
allowed by the U.S. Supreme Court.
CHAIRMAN TAYLOR asked SENATOR LEMAN if he would like the committee
to proceed with the proposed committee substitute. SENATOR LEMAN
answered affirmatively and summarized the following changes made in
the committee substitute. On page 3, paragraph 1, Section 2(b)(1),
the 45 day time limit was removed, because the processing of DNA
evidence may take longer. The new language reads "on or before a
date determined by order or rule of the court." The same language
was inserted in Section 2(b)(2) to replace the 30 day time frame
and in Section 2(d) to replace the 10 day time frame. The DNA
"profile" on line 18 of page 3 has been redefined to include newer
analysis techniques so that polymorphism analysis is not the only
technique identified by law. On line 29, the 45 day reference has
been changed to be consistent with the other timings. On page 4,
changes were made throughout to make criminal actions the same as
civil actions.
Number 103
SENATOR MILLER moved to adopt the proposed committee substitute for
SB 13 in lieu of the original bill. With no objection, the motion
passed. CHAIRMAN TAYLOR announced the committee would be working
on the "Work Draft Chenoweth 1/31/95" version.
Number 124
Jack Quill, Acting Unit Chief of the DNA Analysis Laboratory for
the FBI, testified via teleconference. He informed committee
members that he was aware of the changes made in the committee
substitute. Mr. Quill noted he has testified in over 75
litigations in 25 different states to date, both disability
hearings as well as trials. In his experience, the technology as
applied to currently used DNA profiling methods is considered valid
and reliable. He stated the trial process provides both the
defense and prosecution the opportunity to hear witnesses and to
negate particular testimony due to a procedural error or technique,
and provides the opportunity to set forth additional findings and
the procedures that are currently in use. The basic premise of an
admissibility hearing is the acceptance by the scientific community
of procedures used. A consensus was reached by the National
Research Council (a group of the National Academy of Science) in
support of the use of DNA profiles as admissible evidence in courts
of law.
SENATOR GREEN asked if Mr. Quill was aware of any particular group
who violently opposes the admission of DNA testing. Mr. Quill
responded the current area of discussion is in population genetics.
The underlying molecular biology theory is accepted but there is an
ongoing discussion about the statistical interpretation. There is
a concensus among those doing forensic testing regarding
statistical approaches that can be used.
Number 187
SENATOR TAYLOR clarified that a statistical interpretation would
not clearly identify the defendant but could identify a subgroup
within a given population with a particular trait in their genetic
structure. The debate would then be over the size of that group,
and what percentage of the population it represented. Mr. Quill
explained that there are two different technologies being used, the
restriction fragment length polymorphism technique (RFLP) and a
newer technique called polymerase chain reaction (PCR). PCR tests
determine 21 different DNA types in one particular location. New
systems are coming on line that are also being used. The ability
to discriminate is higher using the RFLP technique at this point in
time but the techniques are evolving very quickly. The National
Research Council has convened a new group to review various
population studies to devise new statistical interpretations.
SENATOR ELLIS arrived at 2:12 p.m. SENATOR TAYLOR noted CSSB 13
includes a more generic definition of DNA technology and deletes
the specific time limit for notification in order to give the court
the opportunity to link up with technology.
Number 246
Dean Guaneli, Assistant Attorney General, Criminal Division,
Department of Law, testified. The underlying scientific debate
regarding the viability of this type of testing has been laid to
rest: that the DNA molecule can be characterized in terms of
various characteristics and can be compared to known statistical
databases. What is in dispute among some segments of the
scientific community is what conclusions can be drawn from that
testing and what kind of probabilities can be applied to various
DNA profiles. That ongoing scientific discussion gets into the
courts and effects how this evidence is used in specific criminal
prosecution. Mr. Guaneli gave the following example. With fairly
rudimentary testing, a blood sample can be taken at a crime scene
and can be compared with a known blood sample from a suspect. Both
samples could be Type A blood. Those test results could eliminate
approximately 70 percent of the population. With DNA testing,
theoretically, the odds can be increased into the millions, so that
there would only be one person in a million with the same DNA
profile as another person. When talking about probabilities in the
millions, we have to rely on fairly sophisticated genetic studies
of different population groups. Different conclusions can be
drawn. The cutting edge of that scientific research is being
conducted at the FBI, at various universities across the country,
and at various sophisticated commercial laboratories. Much of that
cutting edge research has not percolated down to the general
scientific community. Unfortunately the test used by the courts to
admit scientific evidence in a trial is a test that derives from
the 1920's, known as the Frye test. The Frye test bases
admissibility on whether the scientific evidence is generally
accepted within the scientific community. This can exclude cutting
edge technology which is not accepted by the general scientific
community at this time, but is accepted at the more sophisticated
laboratories. The federal courts have moved to a more modern
standard which looks at the scientific validity of the technology.
CSSB 13 seeks to adopt the more modern federal test for
admissibility so that Alaska can keep pace with rapidly progressing
technology. Mr. Guaneli stated the use, as evidence, of the DNA
analysis with a higher probability will be needed in order to
obtain convictions. CSSB 13 accomplishes that by amending Rule
702.
Number 324
Chairman Taylor expressed concern about modifying Court Rule 702.
He felt the modification should be narrowly defined to DNA so that
a Pandora's Box of other skills and questionable techniques by
alleged experts cannot be justifiably used. Mr. Guaneli agreed
that observation is legitimate and noted other DNA bills currently
in the Legislature restrict this newer test of admissibility to DNA
evidence only. Some prosecutors have expressed concern that
opening Rule 702 too much could allow for "junk science" and that
for enough money, a defense attorney could hire an expert who would
say just about anything for enough money. However, the overall
judgement of prosecutors in Alaska is that with this standard as
applied, that kind of evidence can be excluded.
Number 358
SENATOR TAYLOR referred to the utilization of "enhanced memory
techniques" by experts and explained the use of this hypnosis
technique has led to convictions based upon strange and bizarre
responses. He remarked that he believes this technique is now
becoming discredited, but at the time it was offered, the public's
desire to go forward with this type of testimony was at a peak, and
it could be considered scientifically valid. Mr. Guaneli answered
that the Alaska Court of Appeals has determined that hypnotically
enhanced testimony is not admmissible in criminal prosecutions.
SENATOR TAYLOR discerned he is willing to go a little farther than
the norm at this point because of the rapid evolutionary changes in
DNA technology, but he expressed concerned about the language in
the bill.
Number 384
Mr. Guaneli reviewed the evidence rules. Rule 702(a) follows the
standard from the U.S. Supreme Court. An additional change to
another evidence rule (703) is in reference to expert opinions and
specifically eliminates the principle of "general acceptance" as
applied by the Frye test. It negates the need to prove that
evidence is generally accepted among the scientific community.
Number 397
SENATOR ELLIS asked if the committee substitute makes any changes
regarding the types of people DNA testing would be used on. Mr.
Guaneli stated SB 13 relates only to admissibility of evidence in
a criminal proceeding, other DNA bills relate to DNA databanks
which are a collection of samples from different types of
offenders. He explained that because the tests are expensive, DNA
evidence is only used in felony cases, generally in murder cases.
Number 415
SENATOR ELLIS asked how things would change in the courtroom if
CSSB 13 were to pass. He questioned whether this bill lowers the
requirements for substantiation. Mr. Guaneli described a recent
case in which a sample of genetic material from the crime scene and
a sample from the suspect was tested. Based on the test
conclusions, world-reknowned experts stated, as a matter of
probability, that the odds of someone else having the same genetic
make-up were on the order of 1 in 50,000 or 1 in 100,000. The
judge, applying the Frye test, disallowed the use of those odds as
evidence, but allowed a probability of 4 out of 100 to be used.
Those odds are only slightly more accurate than blood tests. Mr.
Guaneli explained that a jury would feel much more comfortable
basing its decision on the experts' testimony.
Number 445
SENATOR ELLIS commented that the fact that adequate studies have
not been conducted on the Alaska Native population is reason for
concern. He questioned whether the lack of studies would be cause
for greater conjecture in the experts' testimony. Mr. Guaneli
replied, to his understanding, there have been some genetic studies
of Alaska Natives, and more are ongoing. The world's foremost
geneticists argue that there are a lot of subgroups within the
human population, in general and within racial populations, but
there has been no significant distinction between the genetic make-
up of any of those subgroups found to date. Additional subgroups
can always be identified, but geneticists have found greater
intragroup genetic variations than intergroup genetic variations.
For that reason they have not been terribly concerned about the
lack of a huge statistical base among subgroups. Mr. Guaneli
stated that additional subgroup studies are confirming that
position.
Number 478
SENATOR ELLIS referred to information collected from Dr. Alan
Barnes of the UAA Justice Center which concludes that small
isolated populations share multiple genetic markers. Dr. Barnes
stated the probability would be changed significantly as 35
individuals in a small Alaska Native village might have a 1 in 100
chance of sharing similar genetic markers as opposed to 1 in
1,000,000 for the general Alaska population. SENATOR ELLIS asked
what the duties of the State are regarding adequate studies to
prevent unequal treatment and whether there would be an enhanced
chance for appeal based on the lack of studies. Mr. Guaneli noted
there are several cases before the Alaska Court of Appeals on the
question of DNA admissibility because of the probability issue.
Mr. Guaneli felt the debate over the reliability of distinctions
made in genetic material has been settled and that as long as the
court is applying the test of admissibility approved by the
Legislature, due process would be served. He reiterated the court
process allows for cross examination.
Number 506
SENATOR TAYLOR felt this question would be of greater import if a
crime occured within a village where several other people may share
common traits, rather than if a crime occured in Los Angeles.
Number 519
SENATOR ELLIS asked if any ongoing committees internal to the court
system are working on amending Rules 702 and 703. Mr. Guaneli was
unaware of any. SENATOR ELLIS asked Mr. Guaneli to check with the
court system.
Number 557
SENATOR ELLIS directed his question regarding unique subgroup
population studies to Mr. Quill of the FBI. Mr. Quill
informed the committee that the FBI uses a method of statistical
approach called "binning." This method allows population studies
to be done to determine frequency of occurence and places the
frequency of occurence in with other occurences to minimize the
bias toward any particular subgroup.
TAPE 95-3, SIDE B
SENATOR ELLIS asked if, by using that standard, it would be
impossible to "mess up" in an Alaska court case with an Alaska
Native as the accused perpetrator. Mr. Quill noted the Alaska
State Troopers are doing the DNA profiling, and he was sure they
have conducted various studies by which they base their statistical
interpretations which are accepted as valid and reliable. SENATOR
ELLIS asked if Mr. Quill was aware of any studies that have been
conducted specific to the Alaska Native population. Mr. Quill
offered to check his data on world population studies for that
information.
SENATOR TAYLOR noted that because of the isolated nature of many of
Alaska's villages, a study of one village may be completely
irrelevant to any other village. He commented that the DNA
profiles of the inhabitants of an isolated village would have a
greater commonality among DNA profiles. SENATOR TAYLOR clarified
that issue is not addressed in SB 13, that is what a judge would
have to decide when reviewing evidence. SB 13 allows the judge to
listen to newer or cutting edge techniques. Mr. Quill agreed that
SB 13 allows the court more flexibility to accept evidence as
admissible, allows for cross examining to deal with this
controversy, and reduces costs to the state. Mr. Quill was unable
to locate the information on the Alaska Native studies, but offered
to send the information to the committee.
SENATOR ELLIS discussed a book entitled Exploding the Gene Myth and
questioned whether it was a reputable source of information. In
the book, the author contends that the FBI's forensic laboratory
ran DNA profiles on blood drawn from 225 FBI agents (in 1991). A
duplicate test conducted at a later date found one in six profiles
did not match the original. Mr. Quill commented the author may
have confused the study with a study on a larger group of 750
caucasians that consisted of the same 225 agents tested in the
initial study. He explained that duplicate DNA profiles were
identified but he felt the ability to verify the duplication of
profiles to be a positive aspect. He added that the FBI's work has
been scrutinized by an individual from Yale University (name
indiscernible). A 1992 article was published in "Nature," in which
this individual concluded that the only thing to fear from DNA
profiling as it is conducted now is that one may have an evil,
identical twin.
SENATOR TAYLOR announced that due to time constraints, SB 14 and SB
10 would be heard next Monday, February 6.
Number 874
George Taft, Director of the Alaska Crime Lab testified. Mr. Taft
informed committee members that the Alaska Crime Lab received a
grant several years ago from the Alaska Science and Technology
Foundation to do sampling of the Alaska population. To date,
several hundred blood samples have been collected using the PCR
technique. A molecular biologist on the staff has been analyzing
the samples and is currently doing so at the FBI laboratory. He
noted his staff has testified in six to ten cases; Frye hearings
were held in two cases.
SENATOR TAYLOR asked if those samples are from unique groupings.
Mr. Taft stated they are addressing that issue by sampling
different groups in the State using the PCR technique and
categorizing the samples being selected.
SENATOR ELLIS asked what percentage of the work that needs to be
completed for Mr. Taft to feel comfortable with the statistical
interpretation, has been done to date. Mr. Taft stated the work is
ongoing and will continue for another year, so the question is
difficult to answer.
SENATOR ELLIS questioned whether the relative probability or
accuracy of DNA analyses has increased during consecutive trials as
more of the blood samples have been analyzed. Mr. Taft stated they
have taken a very conservative approach and he did not recall that
any numbers were given out in the testimony. SENATOR ELLIS asked
for clarification. Mr. Taft explained the tests could be used to
determine whether a person could be included in a group or not, but
was not more specific than that. He added that 30 percent of DNA
testimony excludes the suspect. SENATOR ELLIS questioned whether
DNA evidence could provide more accurate information. Mr. Taft
commented that the PCR technique does permit more accurate
information and can give 21 blood group types versus the four blood
types in the ABO system. SENATOR ELLIS asked if the newer
techniques are too costly to use. Mr. Taft replied the RFLP is
extremely expensive at this time and the techniques are still
evolving. The Alaska Crime Lab is using the PCR technique as a
screening procedure, and if warranted, samples can be sent for
further analysis using the RFLP technique.
SENATOR ELLIS asked Mr. Taft if an ethnic breakdown was available
of the samples taken. Mr. Taft said that information would be
provided. SENATOR TAYLOR requested additional information on the
range of the sample, and when significant accuracy within various
groups could be established. Mr. Taft agreed to provide the
information by Monday.
SENATOR TAYLOR asked for additional information on the DNA
subspecies question in regard to animals.
Jack Chenoweth, Legal Services, testified. Mr. Chenoweth drafted
SB 13. SENATOR TAYLOR directed Mr. Chenoweth to provide the
committee with language to be included in a new committee
substitute to narrow the evidence definition to include only DNA
testing. He also asked for an explanation of why the original
draft of SB 13 amends Rules 401, 403 and 705, but CSSB 13 only
amends Rule 403. Mr. Chenoweth answered that he used SB 275 as a
model for SB 13 and the final version of SB 275, as it went to
Governor Cowper, amended Rules 401, 703 and 705. During the
committee process the Rules were removed and then reinstated. Mr.
Chenoweth felt if a gray area exists as to their inclusion, it
would be better to include them as a precautionary measure. SENATOR
TAYLOR agreed. Mr. Chenoweth further explained that Rule 401
refers to relevant evidence, Rule 705 refers to evidence
requirements.
SENATOR ELLIS asked if a proposed committee substitute could be
provided prior by Monday's meeting. Mr. Chenoweth stated it could
be provided late Thursday afternoon.
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